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Summary of Decisions - October 8, 2012 – October 12, 2012

October 12, 2012 - 1:22pm


Personnel Security Hearing (10 CFR Part 710)

On October 11, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should be restored. A Local Security Office suspended the individual’s security clearance for providing false information on a Questionnaire for National Security Positions (QNSP) and failing to comply with rules regarding the handling of classified information and conduct within limited access areas. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had presented sufficient evidence to resolve these security concerns. Specifically, he found that the individual had unintentionally misinterpreted a question on the QNSP, demonstrated a very positive history of complying with rules and regulations despite the isolated errors, and remains fully engaged in protecting classified information. As a result, the Hearing Officer was convinced that the likelihood that such incidents will recur is low. OHA Case No. PSH-12-0081
(William M. Schwartz, H.O)

On October 12, 2012, an OHA Hearing Officer issued a decision in which he concluded the DOE should grant an individual an access authorization. A Local Security Office suspended the individual’s security clearance because of concerns regarding the individual’s prior use of heroin and an opinion of a DOE consultant psychologist that the individual suffered from Opiate Dependence and Learning Disorder Not Otherwise Specified. A Local Security Office cited this information as the basis for security concerns under the Bond Amendment and 10 CFR Part 710. The Hearing Officer found that that the individual resolved the concern related to his use of illegal drugs based on testimony and other evidence regarding the treatment the individual had received for his Opiate Dependence, and the testimony of the DOE consultant psychologist who, with the additional evidence provided as to that treatment, opined that the individual was at a low risk of relapse into the use of illegal drugs. The Hearing Office further found that the individual had resolved any concerns under the Bond Amendment, as he did not meet the definition of “addict” referenced in that statute. With regard to any security concern raised by the diagnosis of Learning Disorder Not Otherwise Specified, the Hearing Officer found the concern to be resolved, based primarily upon the testimony of the DOE consultant psychiatrist that he had
changed his opinion that the individual’s ability to read would be at such a low level that it would affect his reliability; particularly his reliability with respect to being able to learn about and follow security regulations. OHA Case No. PSH-12-0079 (Steven J. Goering, H.O.)

Freedom of Information Act

On October 9, 2012, OHA issued a decision denying an FOIA Appeal filed by William Berger from a determination issued by the DOE’s National Nuclear Security Administration (NNSA). The Appellant filed an Appeal seeking information about an internal investigation conducted at Fort Chaffee, AR. In its Determination Letter, NNSA informed the Appellant that it neither confirmed nor denied the existence of any such records described in the request (Glomar response). Citing FOIA Exemption 6, the Authorizing Official stated in the Determination Letter that an official acknowledgement of an investigation or an acknowledgment of the existence of investigatory records about an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy. The Appellant challenged NNSA’s determination. After reviewing the interests to be balanced to justify Exemption 6 protection, OHA concluded that, if responsive documents were to exist, the request at issue might reveal the identities and personal information of individuals involved in an investigation. It further found that NNSA appropriately invoked its Glomar response, neither confirming nor denying the existence of the investigatory records sought by the Appellant. OHA Case No. FIA-12-0051 On October 11, 2012, the OHA denied a FOIA Appeal filed by the California Arizona Nevada District Organization (Appellant) of a determination issued by the Loan Guarantee Program Office (LGPO). The Appellant challenged the withholding under Exemption 4 of the FOIA of the total hours worked and total pay received from the released document. OHA found that release of that information would cause substantial competitive harm to the submitters of the information, and therefore, it was properly withheld under Exemption 4. LGPO also withheld the information under Exemption 6. OHA found that the information could not be withheld under Exemption 6, but it could properly be withheld under Exemption 4. Therefore, OHA denied the Appeal. OHA Case No. FIA-12-0053